Parking Eye and Parking Tickets

The Court of Appeal appears to have put the final nail in the argument over "illegal" parking fines and declared them not to be so.

Although the decision is somewhat complex with a long analysis of the role of penalties in contract law the decision is relatively easy precis.  The Court accepted the decision of Judge Moloney QC (Designated Civil Judge for East Anglia) that the charges were enforceable since they did not offend the conscience of the court.

Giving the judgement of the Appeal Court Lord Justice Moore-Bick reviewed previous decisions on penalties in contract, specifically those designed to deter non compliance with the contract.  The appellant had argued that his parking charge was unlawful because it was, in reality, a penalty clause that sought to deter and was unenforceable in law since it bared no relation to any loss under the contract.

The court dealt with this issue by reviewing previous court authorities and accepted Parking Eye's argument that only penalties that are extravagant and unconscionable are unenforceable.  The court agreed that the penalty in this case was not manifestly excessive and so not extravagant and / or unconscionable.

It is interesting that arguments about the contractual relationship between the parties (a common argument discussed in motoring forums) was dealt with only briefly.  Lord Justice Moore-Bick stated at paragraph 23

It was common ground before us that a motorist making use of the car park enters into a contract with ParkingEye under which he agrees to leave the car park within a period of two hours. Failure to do so constitutes a breach of contract in respect of which he agrees to a parking charge of £85. For the purposes of the present appeal I am content to assume that that is so,

Thus far this is the argument made in my previous blog regarding the Sommerfield Stores decision, that the contractual penalty was in fact agreed at the outset of the contract.   The judge continues

but it seems to me that the relationship between the motorist and ParkingEye might be better analysed in terms of a licence to use the car park, subject to certain conditions, coupled with an agreement to pay a parking charge in the stated amount if the terms of the licence are not adhered to. On that basis it could be argued that the parking charge was no more than a conditional payment which the motorist could choose whether to incur or not and that the authorities on penalties for breach of contract were of no relevance.

Although ultimately the distinction was not important to decide the case it is refreshing that the argument as regards this part of the enforceability of the contract has been dealt with.  It now seems clear and settled law that there is a contract / license / private law relationship between car park operators and those who park in the location and use the services (providing it is clear of course that this is the case).

The appellants also argued that as ParkingEye suffered no loss (it did not charge to use the car park, it merely gained revenue from those who did not comply through penalty charges) it had nothing to recover in law (contract).  The court dealt with this argument by taking into account the wider contract that ParkingEye entered into with the landowner.  It held that ParkingEye had a clear commercial interest in providing a managed car park service to the landowner and it would be at risk of losing this business should the car park not be managed appropriately (which would then have led to a loss for the landowner as well).

The final argument for the appellants was that the penalty charge was an unfair contractual term, again this was rejected by the court who held that an unfair term would require evidence of a lack of good faith and a significant imbalance in the parties rights.  There was no bad faith found since it was quite clear to the motorist in the case what the consequences were of overstay.  The court then held that charges like this were available to local authorities in parking and so did not create an imbalance in any relationship.  The court did state that £20 per hour penalty charge when looked at on its own seems excessive (where 2 hours have been provided free) however when all considerations are taken into account (the contract between ParkingEye and the landowner to provide a managed service, the need to make that service effective and to provide incentives (and disincentives) to ensure ParkingEye could provide its services) the charge was not excessive in this case (£85).

Perhaps my favourite argument in the case concerned the intervention of the Consumers Association who argued ParkingEye were not acting in good faith because their business model was to make profit from parking charges.  Lord Justice Moore-Bick rejected this argument and quite rightly intimated that the fact that ParkingEye were good at catching those who did not comply with requirements did not mean they were acting in bad faith.  They were seen to be providing a service, not just for the landowner, but also for drivers and the local area by providing free parking.  

The case then is welcome for clarifying the position of private parking tickets.  The question that is now left for motorists and parking operators is what constitutes a manifestly excessive amount so as to make the penalty unconscionable?

This is a difficult question and one that is, as the court would no doubt rule, a question of fact.  What is an excessive amount in a small shopping centre in a quite town is going to be different from what is regarded as excessive in central London.  Thus each case is fact sensitive, although the court does provide some interesting guidance.  It placed reliance on the amounts charged by local authorities as guidance as to what is excessive (para's 26 and 34) thus this can guide private operators as to what may be permissible.  It also suggests at para 30 that the charge can take into account the cost of collection in setting the fee

Moreover, in my view these submissions fail to pay sufficient regard to the practicalities of providing a facility of this kind. There are obvious benefits to both consumers and retail businesses in having free or cheap car parking available close to the shops for limited periods. That can be achieved only if there is some mechanism for ensuring that in most cases those who make use of the facilities do not abuse them by overstaying. That would not be achieved by a scale of charges graduated by reference to the length of the overstay unless they were sufficient to act as a deterrent. Moreover, the amount of the charge, however, calculated, would have to be large enough to justify collection.

The private parking charge is thus here to stay, it is not illegal unless the charge in question is manifestly excessive and thus unconscionable for the courts to enforce.

Should we be happy with this decision?  Certainly, and understandably Mr Beavis isn't but as the court makes clear we do benefit from controlled parking (a benefit we take for granted regularly and only really appreciate when we can't find a parking space).  The linking of local authority fees and private fees in this case supports calls that have been made for regulation of the private parking sector standards.  Local authority enforcement of parking is heavily regulated and if private parking fees are held justifiable partly on the basis of a comparative relationship with public parking enforcement charges then arguments for some form of regulation seem quite strong.  Indeed I believe that responsible operators should welcome some light touch regulation to drive up standards and drive out the less reputable operators.

Orgainsational research has shown that consumers evaluate the trustworthiness and legitimacy of organisations based on the actions of organisations within that sector, not just the actions of the particular company.  Put simply bad behaviour by one firm is seen as representative of the business sector as a whole, (as an example the ridiculous use of CCTV enforcement by some local authorities has resulted in a decision to stop all local authorities using CCTV unless in specified circumstances (even where the authority was being reasonable and meeting a pressing social need e.g. zig zag lines near pedestrian crossings).  Without some form of regulatory standards the sector is at risk of losing legitimacy (which admittedly (rightly or wrongly) seems already at a very low level).

Thus this case may have resolved the legal argument about the enforceability of these charges and should be welcomed in that regard, the problem of driving up standards and ensuring a fair service are questions that need addressing and constant attention from operators in order to provide an effective, efficient and fair service to customers and consumers.

10 Minute Leeway

It is reported that the Government will announce today that it will order local authorities to give 10 minutes leeway for those who overstay on council car parks.  This really isn't much of a surprise as the proposal has been trailed for quite some time and the intentions of government were made clear last year in its response to the Transport Committee's report on Local authority parking enforcement.  Although originally the government intended to order a 5 minute grace period.

The need for such a rule is unknown at present, I am not aware how many PCN's (Penalty Charge Notices, or parking tickets) nationally are issued for this particular transgression.  This Government in 2010 removed any central monitoring of local authority statistics on car parking (and litter!) which in my view was a clear retrograde step in obtaining data on trends and patterns.  Instead one is forced to rely on the Freedom of Information Act and to make applications to the 350+ local authorities to gain any great insight.

It is thus hard to assess the extent of the overstay problem.  Some local authorities do, in their annual reports, breakdown the number of PCN's issued by the nature of the transgression.  From a brief perusal of some of these reports there is some variation, in Brighton less than 1% of PCN's issued were for overstay (10 PCNs in 2012/13) whereas South Gloucestershire runs at about 10% (595 PCNs in 2012/13).  Of course the extent to which the local authority uses barrier entries for its car parks will have an effect on this problem.  Indeed perhaps this new proposal is something of a nudge to local authorities towards using barrier entry systems (or who knows complete privatisation).

In fact looking at this as an incentive scheme it should incentivise drivers away from barrier exit car parks unless local authorities operate differential fees for barrier exit.  Put simply you get more time for your money in non-barrier car parks (assuming price parity).  Thus we have a nudge in one direction that is countered by an incentive in the other (although barrier exit does generally allow a period of grace to leave the car park so perhaps this will counter the incentive (although not in cases of minimum parking assuming price parity)).  Perhaps local authorities will hold off on barrier car parks until they have some data on the effect of the incentive.

Looking at a number of local authority annual reports that actually breakdown the number of penalty notices by type, about 10% of all PCNs seems to be the general figure for overstay.  Of course this still doesn't help to explain why the 10 minute grace period may be necessary since all overstays (5 minutes, 10 minutes, 5 hours or n hours) are lumped within this one category.  So do we need the extra 10 minutes? Possibly, possibly not there is no evidence either way.

Despite the lack of evidence my personal opinion is that this proposal should probably be welcomed as a necessary injection of common sense into a sometimes inflexible system.  I have no doubt that certain drivers in future will be railing against the inflexibility of issuing a notice when they are 11 minutes late, but one has to draw the line somewhere.

There are no doubt concerns that local authorities will have, more so those who run an efficient operation with sensitivity to supply and demand.  In effect the 10 minute grace period is a price reduction, outside large cities this may not have much effect, but in large cities then there is potential for a clear impact on traffic management priorities, particularly in short stay car parks and meter parking.

As the regulations have yet to be published it is unknown whether the 10 minute grace period applies to on street parking, particularly short stay meter parking.  Take for instance in the City of London where parking is £4 per hour.  The 10 minute grace period means it will now be £4 per 70 minutes, or 5.7p per minute (currently 6.6p per minute).  In Islington the maximum is £6 per hour at the new rate that will be 8.6p per minute (currently 10p per minute).

Islington also offer stays as short as 5 minutes (40p), with these parking spaces allowing a 10 minute grace period is equivalent to offering a buy one get two free deal.  Surely the announcement won't apply to these transactions (here the price drop is from 8p per minute (current) to 2.6p per minute (new)).

In the time it has taken to write the blog the announcement has been published and it would seem that all pay and display and free parking bays are included, thus good luck Islington!

The question now for those authorities that do operate on a supply and demand service that is sensitive to pricing changes is whether they will seek to increase the initial cost to offset any potential traffic management issues as a result of this announcement.  For example will Islington increase its top price to £7 per hour to maintain the status quo (assuming that the relationship between pricing and demand is linear, which is by no means a safe assumption).

The announcement once again trots out the nonsense phrase 'war on motorists', if it is a war then clearly the motorists have been winning for quite some time.   Parking is never free the only question is who pays, with rhetoric that talks of the 'war on motorists' those who end up paying unfairly are those who do not have cars (the general tax payer).  In other words talk of a 'war on motorists' could easily be described as a 'subsidy for motorists' or 'a war on non motorists'.  As a motorist myself I enjoy this subsidy, but I do recognize it is a subsidy paid for by everyone.

With the growing influence of polluter pays principles in public environmental policy (and sentencing policy) and the stress on responsibilisation across great swathes of public policy one does wonder why motoring seems exempt from this.  Any exception to this rule really needs to have some basis in reality, at present there isn't the evidence to suggest a skirmish let alone a battle and certainly not a war on motorists.  Yes running a vehicle is expensive but so are many other activities that don't require (and don't receive) a subsidy.  I enjoy playing the piano and lessons are expensive, but I don't believe there is a war on pianists (we'd probably lose anyway because we have to look after our fingers!).

The above analogy may not be perfect but it does highlight one particular solution for some local authorities, withdraw from providing public car parks and let the private sector take over.  As a motorist I would not welcome such a move and as a citizen I do believe that provision of parking is a social service that authorities should provide, particularly to disabled drivers (which is why I think this decision by Stoke on Trent City Council is nasty and an egregious injustice to the more vulnerable members of society.  Perhaps this is an example of a local authority firing an opening volley on a certain section of motoring society, after all they do justify the charges on the basis of maximizing income).

In any event the move should be cautiously welcomed as a common sense reflection of the essentially minor nature of a parking transgression in the most minor circumstances. Although this may be a common sense solution we shouldn't think it won't have some negative consequences, what those are will no doubt play out over the coming months.

Day Fines, Speeding and Finland

Every so often, if one follows the criminal justice system, the current fines handed out to offenders will be subjected to critical attack.  How can it be fair, the statement will go, that footballers like Ashley Young can be fined £1350 for speeding which is such a small proportion of his income that it makes very little difference to his lifestyle.   

Well today I have come across the ultimate fine for speeding courtesy of the BBC:  A driver in Finland has been fined the equivalent of £39,000 for driving at 62 mph in a 50mph limit.  This represented 2 days income for the man in question.  Ashley Young is rumored to be on a broadly similar salary and yet the fine represented approximately 2.5 hours salary.

Is it time again to look at proportional earnings fines?  Probably not but no doubt this case could fuel some interesting questions in that regard.

Mobile Phones and Enforcement Retreat

According to reports out today we are in the midst of a retreat from road policing enforcement of mobile phone use behind the wheel, although some novel ideas (ironic font) are being used.  I leave aside the serious claim made by Suzette Davenport, the Chief Constable of Gloucestershire, that enforcement is being back peddled due to the upcoming election.  If true this a very serious accusation and one that shouldn't be ignored given the person making the accusation.

I wondered, being a curious type and someone who is interested in road policing, whether there is evidence of a regulatory retreat (for want of a better word).

I am used to hearing claims made about speeding enforcement of a retreat, or lowering of police / partnership interest in speeding enforcement.  Those claims are largely false based on incomplete data, since generally such claims fail to take into account the spectacular rise of Speed Awareness Courses, which are now the most common form of "punishment" for speeding motorists.  Overall speeding enforcement hasn't reduced if one factors speed awareness courses in.

Unfortunately there are no statistics on the number of driver awareness courses in respect of mobile phone use.  Certainly they are used but we have no data to understand the extent to which they are used.  Looking at fixed penalty and prosecution data we can see that such enforcement action is reducing.  

One can see from this chart that there has been a reduction in official actions in respect of mobile phone driving since 2010.  Unfortunately 2013 statistics have yet to be published on FPNs, quite why this is so is beyond me, we are now approaching the end of the 2014/15 financial year and are still waiting 2013 statistics!  Over the period 2009-2012 prosecutions ran at an average of 21.5% to FPNs, giving an estimated  number of FPNs of 91,395 (based on actual 19,650 prosecutions in 2013).  This gives a grand total of 111,045 a total reduction of 1270 or 1.23% reduction.   Hardly a great reduction on the previous year, although the reduction over the lifetime of this parliament appears to be a 30.6% reduction over all.

This reduction comes at a time of increasing use of mobile phones behind the wheel according to a DFT survey.  Sadly what we still don't know is what reduction in prosecutions and fixed penalty notices is accounted for by driver awareness courses.  Certainly it would be in the government's interest to collect and publish this data in order to counter the claims of the Chief Constable, without doing so it risks creating a perception that roads policing is not a priority, as evidenced by recent claims that the government were undermining road traffic policing.

Once this data is made available then we can begin to ask, and answer, some of the more interesting questions about the efficacy of such courses, and whether road policing really is a priority at present.  Come on the Home Office get your data published!

Drug Driving

A new law has come into effect that means police officers can now test for, and prosecute, drug diving offences.  ACPO have welcomed the developments  as all of us should really.

The sky news report inevitably raises the idea of zero tolerance, of which I have spoken before.  This got me thinking about one particular drug, cannabis.  If this policy is to be truly a zero tolerance policy, which I seriously doubt for most police force areas, then I have been thinking about the dangers of passive smoking.

Now many will already be thinking  'this doesn't apply to me' I'm a respectable person who doesn't know anyone who smokes cannabis, and perhaps for some this is true.  However, many of us though have been walking down the street and all of a sudden an 'interesting smell' (makes me think of very sweet garlic combined with basil, how middle class!) assaults our nostrils.  Perhaps it's a reflection of where I live, but it is not infrequent round my way.  (Indeed a small cannabis factory was closed by police just a few weeks back round the corner from me).

So I do wonder what effect walking past someone who is actively smoking a spliff (or whatever they are called nowadays) would have on my driving ability.  Would it put me over the drug driving limit? how long should I leave it before getting in my car?  (These are all equally valid questions for the drink driving issue when a zero limit is proposed, although obviously one can't passively ingest alcohol!). I have asked a couple of police twitter accounts and the DFT twitter account this morning but haven't received an answer (hardly surprising they probably get such requests daily) so I thought I would do a bit of looking.

There is evidence to suggest that zero tolerance should be adopted when considering the effect even small levels of cannabis can have on driving performance, although the new laws have not adopted this approach.

The regulations prohibit driving with a limit of 2 microgrammes per litre of blood for THC (Active ingredient in cannabis).  According to a study in the Journal of Analytical Toxicology in 1987 high cannabis use in enclosed environments can lead to high THC levels in urine of passive smokers, although as the authors point out it would be quite uncomfortable in such an environment given the level of pot that was likely to be swirling round the room.  With lower exposure (4 passive cigarettes) there was  infrequent positive testing and generally tests were neutral, make of that what one will (inconclusive I would say and unlucky for some in the current context).  Although it is worth pointing out that the subjects in the experiment were still in an un-ventilated room with the smoker

A study in 2011 examining the inhalation of passive cannabis smoke in dutch coffee shops showed that THC was present in saliva above the legal limit (proposed in the current law) in most participants at 40 minutes exposure.  It is worth pointing out in this study that two locations were used, a larger cafe with more smokers, and a smaller one with less smokers, both produced positive results, although it seems that the smaller the environment the higher the THC levels (with lesser active smokers).

A similar study in 2010  also found levels of THC about 2ng/ml (the drug driving legal limit) from passive cannabis inhalation in a dutch coffee shop at 3 hour exposure, although the authors accepted that the study did not note (unlike the 2011 one) how much cannabis was smoked by other users of the coffee shop.

So it would appear that it is possible to be above the legal limit from passive smoking of cannabis, however unless you are friends with some pretty heavy users it is unlikely you will fall foul of the legislation.  I for one am not too worried now about the funny smells in my neighbourhood giving a false positive.

So what have we learned from this?  Firstly the law is not, despite what policy makers may claim or newspapers report, zero tolerance, there is a tolerance of up-to 2 microgrammes per litre of blood.  You are unlikely to be over this level unless you have spent a bit of time in a Dutch coffee shop, caught an immediate flight home and then decided to drive from the airport (perhaps a taxi might be in order).  Alternatively if you know people who are heavy users then please for everyone's sake do not drive and do not let your friends drive.

Secondly I have also learnt that if you want the thrill of cannabis use without actually buying it yourself Dutch coffee shops seem a good place to visit!

Benefit Sanctions

Although this post is not strictly motoring related I think there are some lessons from the motoring context that can inform how we respond to the issue of benefit sanctions.

Today I was sent a link to this excellent piece by Dr David Webster.

Webster reports that 

Benefit sanctions are an amateurish, secret penal system which is more severe than the mainstream judicial system, but lacks its safeguards. It is time for everyone concerned for the rights of the citizen to demand their abolition.

For anyone who has ever been on job seekers allowance the incredible pettiness of the job search scheme and the ever present threat of sanctions is very real and very demoralising.

For my own view the scheme of sanction is an absolutely disgraceful attempt to undo any understanding of solidarity in the social security system.  This is not to suggest that sanctions are never warranted, of course they may be, but the truly horrifying element of this story is that such sanctions seem whimsical in the extreme.  No due process, no fair hearing, no presumption of innocence, no mistakes are allowed (sound familiar to any claims made about speeding FPN enforcement? although of course at least there the income isn't taken at source and probably doesn't represent your entire income, and you do have the option of an independent tribunal BEFORE any income is taken).

Sanctions may at times be needed but as Webster points out the overwhelming majority of sanctions are aimed at incredibly minor infractions.  Such infractions could include only taking 35 instead of the required 40 job steps that week, taking a Sunday off job searching, failing to log into the governments Universal Job Match (which if anyone has ever used the system as I have should concur that it is absolutely rubbish, it doesn't allow sector specific searches and seems designed solely to cater to agency jobs (which again from personal experience aren't really jobs just speculative adverts trying to get you to sign up or are actual jobs that you can apply for directly  without the agency)).

What struck me particularly, and this is where it links in with motoring enforcement, was the chart.  The data lines look broadly similar to speeding enforcement by way of FPN and Speed Awareness Course.  In speeding the awareness course is now the main means of "punishment", FPN fines have reduced.  What strikes me is that some people I have interviewed for my PhD have given a reason for not attending the course that 'its obvious you shouldn't speed so there is nothing to learn'.  Now I'm not sure this is entirely true, generally such views are accompanied by a view that its easier and cheaper (when factoring in the time) to pay the FPN.  However I can understand that point it really is quite easy to understand the prohibition against speeding.  Now compare that to the situation with benefit sanctions, welfare law is notoriously complex (it probably rivals tax law as the most complex area) and yet in this complex area perhaps where some education would help in understanding the process (and the incredibly complex forms you have to fill in) sanction seems to be the easiest word!

Before anyone objects to the above, think of this.  Would any employer be entitled to run a system like this?  It would be an illegal deduction from your wages in all likelihood, and given that they would in effect be stopping all your wages it is likely that you would have been constructively (if not directly) dismissed.  Only tuppenny ha'penny firms still stuck in the 1970's would ever consider acting in this manner (and would likely have unfairly dismissed you), and yet this is the government we have now.  If you receive benefits not only are you expected to work 365 days a year (and vastly below the minimum wage particularly if enrolled on the work fare program), you are expected to know the intricacies of the benefit regime and if you don't, well then you either starve or get to a food-bank if you are lucky (and look how angry ministers get when food-banks are brought up!)

Where is the compassion or understanding? Again I would reiterate the point I'm not talking about long term unemployed here the evidence suggests that the majority of sanctions are for those who are short term.  It is ridiculous and part of an attempt to shape a particular form of citizenry that approaches an ideal that very few can match.  It wouldn't be so bad if sanctions were a last resort, but they are not, they are the first go to policy option.  If there is a problem a financial sanction can solve it (unless it involves people we like or who might vote for us then we can think about education first).

In any event I hope after reading this you do read Websters blog and report it is depressing and makes me incredibly angry! 

Mobile Phone Driving Device

The desire to find technological solutions for law enforcement issues is an endless topic of fascination for me.  I found this interesting example the other day whilst perusing twitter.  Norfolk County Council plan to use a ‘Mobile Phone Detection System’ which will detect whether a vehicle has a mobile telephone in it that is currently being operated and will signal a sign to light up.

Yes you read that right that is the extent of the technological development, it will detect whether a vehicle has an active mobile phone in it.  It won’t detect whether the driver is using the mobile phone, it could be the passenger. 

It doesn't say in the report how or what triggers the sensor, whether it is use of the mobile phone for calls and texts or whether data usage also triggers the device.  Presumably it will detect data use otherwise it seems outdated since use of facebook, twitter or whatsapp may not trigger the device unless data use was also detected.  This would be a clear problem for the device since such use is more common than actually talking on the phone behind the wheel.  If it does detect data use then presumably it will also detect back ground data usage on running apps or service updates.  Furthermore it doesn't make clear whether the data use has to be outgoing or in-going, for example will receiving a call or text set off the device regardless of whether answered or not?

Hopefully these questions were asked by the council before committing to purchase.  What is clear from the report is that the council and police force are completely unconcerned about false positives: (e.g. receiving a call and not answering, or passenger using a phone).

‘The system can't detect whether it’s a passenger using a phone in a vehicle or whether a hands-free device is being used. But of course, those people don't need to be worried if they get a flash from the sign’

One has to ask what on earth is being signaled by the second sentence in this quote, worried about what? Clearly it’s not an enforcement tool so there is no danger of official action here, all that happens is a no mobile use sign will be displayed. 

According to the head of Norfolk and Suffolk Roads Policing Unit:

Driving while using a mobile phone is dangerous because it distracts your attention from the road.

Quite how a flashing illuminated sign helps refocus is not quite clear, I could see how the sign could quite easily distract a driver particularly when it gives a false positive (flashing sign but no mobile phone use, e.g. an incoming call or passenger call).  Here it seems it would be quite distracting to have to wonder why I have been given a signal when I am not using my phone.  If it detects data use as well then the possibility for more confusion arises as we wonder why on earth the sign has been illuminated. 

It’s also worth thinking about who this sign is ultimately aimed at, it seems it is aimed at those drivers who use their mobile phone and are unaware that it is an offence to do so.  Now to me that seems a very small (very very small) number of drivers.  Those who use their phone whilst driving regardless of the law are unlikely to be affected.

I should point out that I am not against similar signs that highlight the speed limit (I believe it is a similar company to the most common illuminated speed sign company).  With speed limit enforcement the law is not fixed, it is variable depending upon the portion of the road you are travelling on, so a timely reminder of the speed limit could act to help slow us down to the appropriate limit.  Mobile phone use is completely different it is a complete offence regardless of the road you are on (public).

It reminds me somewhat of the don’t drink and drive signs on the motorway, of course no-one should and those that need telling are unlikely to respond to a road side sign.  Now with drink driving again there is an element of public ignorance about how the body processes alcohol and so there is an educational message to be made about morning after (even afternoon after) sobriety.  But with mobile phone use I can’t see the issue.

So I’m left with the feeling that at this point without more knowledge about the actual workings of the system it all seems like a bit of a waste gimmick.  I’d love to know the cost of the system. It seems designed as a system to target those who won’t care or don’t care and may cause more distraction than it is worth.

Illegal Parking Fines Part II

It seems the RAC foundation have engaged legal opinion on the position of private parking 'fines'.  I am satisfied to see a reference to the original Somerfield Stores decision!

Paragraph 37 of de Wall QC's opinion is the crux of the argument and represents the best hope for litigants in the Parking Eye case due before the Court of Appeal at the end of the Month (Judgement expected a month or so afterwards).

de Waal's reasoning is certainly more restrained than some of today's news stories may suggest.  it is worth quoting para 37 in its entirety:

(37)  But I am not sure that this reasoning would apply to parking charges of the kind identified above. These charges are not expressed to be part of a fee for the provision of services, but a charge for exceeding the maximum time allowed on the car park – they are really best understood as a ‘default provision’, that is to say a price paid by the consumer when he or she has done something wrong. Therefore it seems to me that the reasoning expressed in the First National Bank case has more application than that in the subsequent Abbey National case (No emphasis added)

Firstly note 'I am not sure'  which suggests some difference of opinion on the matter.  If I were a parking operator I would certainly be arguing that these terms are not a 'default provision' but a means of providing the service of a managed parking facility.  If the car park operator provides a level of service that manages demand within the parking system then we as consumers benefit from this managed demand.  It allows us to park where otherwise we may not be able to do so at all, or only in potentially dangerous ways.

Thus I would suggest this will be the crux of argument, do private parking companies provide a service over and above merely penalising motorists? I think the answer to that argument is generally quite clear (of course it depends on the particular land in question) they do provide a service which manages demand and controls parking behaviour (even if they charge nothing in the first instance).  The charge is part of that service of managing demand (i.e. you can park here longer than stipulated because the excess charge will compensate the management problem).  Whether this is always the case really is a matter of fact, having received a ticket for a 8 minute overstay on a 1/4 acre piece of scrub-land (first 15 minutes free) on a bank holiday perhaps I should have challenged the notice!

My own personal view is that this part of the challenge will fail, parking companies do provide a management service (in certain circumstances) and as such the price paid for overstay is really a price paid for the space so that the company can provide a managed car park.  Thus the price of the parking ticket cannot be classed as unfair (even if we think it is) since price charged under a contract is not subject the unfair contract terms regime.

de Waal does make an interesting point at para's 59-60, particularly where the car park does not limit time but charges a regular price throughout the day.  Here the excess charge does represent something of a penalty since the car driver could have paid a smaller amount to stay and the car park owner would have accepted this smaller amount.  The excess charge starts to resemble damages which the car park owner would need to justify with reference to any costs they had faced.  Whether those costs could be justified and how those costs are determined would be a very interesting exercise.

Shoup (1994) has estimated, in the US, the actual cost of a free parking space which when adjusted for today's prices is roughly equivalent to $478 per space per month (on a very conservative estimate).  This research is sorely in need of repeating in the UK and is worth revisiting how Shoup arrived at these figures to try to obtain a less conservative estimate.

If the claimants in the court of appeal case lose on this point it seems that private parking tickets will be around for quite a significant time.  As I suspect will arguments about the fairness of parking enforcement.